Proposed refugee and immigration general standards: appendix

Appendix A: Quality service expectations

The Law Society of Upper Canada's Rules of Professional Conduct (RPC) as they relate to lawyers reflect LAO's expectations regarding lawyers' duties to both the courts and to clients.

In particular:

Rule 2 “Relationship to Clients”

Competence

Quality of Service

Confidentiality

Avoidance of Conflicts of Interest,

Withdrawal from Representation; and

Rule 4 “Relationship to the Administration of Justice”

The duty to act competently requires ongoing education and reflection upon one's work.

LAO expects every member of the Refugee and Immigration: General Panel to have knowledge of and, acting in the client's best interests, competently apply:

The Immigration and Refugee Protection Act (IRPA), and other relevant legislation/law

The Convention relating to the Status of Refugees and the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

The Rules of Professional Conduct (Law Society of Upper Canada)

The IRB Rules of Practice and Chairperson's Guidelines

Significant jurisprudence

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

Canada Evidence Act

Interpretation Act

And to provide quality representation considering:

A reasonable client of modest means

Specific issues relating to vulnerable clients including survivors of torture

Privilege

Confidentiality

Respect for the clients instructions

Effective communication with clients using plain language

Cultural and linguistic barriers

Essential advocacy and tribunal skills including but not limited to: review of the refugee claim, research, advising the client, careful preparation of the Basis of Claim form and other documentation, strategizing, evidence gathering and disclosure, preparation for the hearing, preparation of the client, effective advocacy within the bounds of professional obligations.

LAO expects every member of the Refugee and Immigration: General Panel to represent his/her clients effectively and ethically considering the following:

Knowing each of the elements of the claims

Good familiarity with all of the evidence

Knowledge of hearing procedures

Effective interviewing skills

Careful and timely review of disclosure

Research on current country conditions

Knowledge of current jurisprudence relating to the country and issues raised by the claim

Know your limits

Accept only those cases for which you have the knowledge and experience to offer quality representation [Rule 2.01 RPC]

Refer matters you are not competent to handle, or engage a mentor

Adhere to LAO's 'Best Practices Guide' to ensure that clients are provided with high quality legal services.

Appendix B: Best practices guide

1. General

In providing quality service to clients, the panel member shall endeavour to communicate with the client in plain language to their understanding and:

Advance the client's case

Provide the client with the information necessary to make informed decisions respecting his or her representation

Respond promptly to reasonable inquiries from the client

Make reasonable efforts to accommodate clients with special needs, including those who require interpreters and those with literacy or mental health issues

Act professionally with civility and decorum

Avoid unreasonable delays consistent with effective representation in the client's best interests, and a lawyer's duty as an officer of the court

Act reasonably and refrain from pursuing issues that have no real prospect of success and that fail to advance the client's interests.

2. Knowledge of relevant refugee legislation & resources

A panel member should have knowledge of and familiarity with the Immigration and Refugee Protection Act and shall have an understanding of other relevant legislation and resources. See Section 6.

3. Best practices

All matters

First interview

A panel member or person acting under her or his direct supervision should interview the client at the first reasonable opportunity.

At this first interview and all subsequent meetings, the panel member and anyone acting under her or his supervision should be alert to potential linguistic, cultural or mental health issues that could affect the giving of instructions and/or the preparation or substance of the case. The panel member should make reasonable accommodations or take reasonable steps, such as providing an interpreter, or providing appropriate referrals to medical or mental health practitioners and/or other relevant community resources. In RPD cases Legal Aid will pay for the interpreter (up to 10 hours, or more if authorization is requested) as well as for required medical or psychological reports (up to a maximum). Authorizations may be sought for non-RPD cases. A panel member should not request a client pay the interpreter for BoC and Hearing preparation unless LAO has declined coverage.

The panel member should ensure that the client understands generally the test to be met to be accepted as a Convention refugee or person in need of protection in RPD and PRRA cases, or on humanitarian and compassionate grounds in H&C cases, as well as the procedures, role and powers of the relevant tribunal or decision maker.

A panel member must at all times remain alert to potential and actual conflicts of interest that would result in an inability to represent the client.

As soon as possible after the first meeting, a panel member should seek relevant disclosure from the IRB, CIC, and/or CBSA, including but not limited to:

all oral and written statements by the client, and the details of the circumstances under which the statements were made;

all documents, images and recordings pertaining to the claim;

all reports of physical or mental harm.

Preparation and finalization of the forms (BOC, PRRA, H&C)

A panel member or person acting under her or his supervision should be aware of general country conditions in the country of origin of the client and, where appropriate, conduct basic country condition research before finalizing the BOC, PRRA or H&C forms, as applicable.

A panel member must personally interview a client about the contents of the forms before having a client sign it.

A panel member must ensure that a client is satisfied that the forms are complete, correct in every detail, and clearly understood by the client before requesting he/she sign it.

A panel member must give his/her client a complete copy of the signed forms as submitted to the tribunal.

A panel member must discuss with the client the evidentiary requirements for the case, and provide appropriate guidance regarding the collection of such evidence, as well as timelines

Developing and supporting the case

Prior to a hearing or the filing of submissions, a panel member should develop a sensible and coherent theory of the case.

A lawyer should, where appropriate, obtain objective evidence to support the case, including relevant country of origin information, and advise the client on gathering relevant personal documents.

Documents which are not in English or French must be translated before they can be sent to the tribunal. LAO will pay for a limited amount of translation, including identity or personal documents. If a client has more documents that require translation, the panel member should contact LAO for authorization prior to incurring the cost.

In those matters where there is no hearing (e.g. H&C applications, danger opinions, most PRRA applications), a lawyer should develop clear and coherent written submissions in support of the application, addressing the relevant legal, factual and evidentiary issues raised by the application.

Evidence and written submissions should be disclosed in a timely manner.

A panel member should keep the client apprised of any significant developments in the case.

A lawyer should consider disclosing additional updated submissions and evidence in appropriate circumstances.

RPD matters

Prior to the hearing

A panel member must review any disclosure from the IRB, CBSA or CIC prior to the hearing, and discuss and make best efforts to resolve with the client any contradictions, omissions or other issues arising.

A panel member must be/become familiar with the documentation contained in the National Documentation Package(s) and its relevance to the client's case, and should conduct independent country condition research to ensure that reasonably available, relevant and reliable objective evidence supporting the claim is placed before the Board before the deadline for disclosure.

A panel member must meet with the client prior to the hearing in order to fully prepare the client for giving evidence.

A panel member must prepare for the hearing, including by developing a coherent and sensible theory of the case, preparing to make, or respond to, any reasonable preliminary motions or objections, and must prepare to examine the claimant/witnesses and make any oral submissions that will be required.

At the hearing

A panel member must represent the client at the hearing. If a retained panel member is relying on another person to represent the client at the hearing, s/he must obtain the client's consent in advance, and the person providing the representation must be a panel member or be otherwise qualified by LAO and the IRB to do so.

At the hearing, the panel member is expected to represent the client's interests fearlessly and competently, including by bringing relevant motions, raising objections where necessary or appropriate, fully questioning witnesses, and providing fulsome closing submissions addressing all the “live issues” at stake.

After the hearing

A panel member is expected to, where requested by the RPD and having not done so orally at the hearing, provide post-hearing submissions in writing.

A panel member should remain generally aware of conditions in the country of origin of the client following the hearing and to provide post hearing evidence to the RPD where appropriate.

A panel member should advise the client of the outcome of the hearing, explaining it where necessary, and should advise the client of the availability of further procedures including applications for permanent residence, appeals and judicial reviews.

4. Referrals

Panel members should have the ability to recognize when a referral is appropriate. If you lack expertise in other areas of law in which your client might need legal advice, you should refer them to another lawyer. For example; welfare benefits, debt, housing and Family Law issues.

5. Mentors

Panel members should seek the assistance of a mentor when the complexity of the matter exceeds the panel member's experience level; OR you should consider a referral or withdrawing as counsel of record. See: the Law Society of Upper Canada's Rules of Professional Conduct Rule 2.09 (7)

6. Relevant legislation and resources

Legislation

The Immigration and Refugee Protection Act (IRPA) and associated regulations

The Charter of Rights and Freedoms Convention related to the Status of Refugees

Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment

Rules of the Refugee Protection Division and the Refugee Appeal Division

Criminal Code

Citizenship Act

Canada Evidence Act

Interpretation Act

Other sources

Significant relevant jurisprudence in the field of refugee, immigration, administrative and constitutional law

Contacts

Legal Aid Ontario (LAO), an independent but publicly funded and publicly accountable non-profit corporation. None of this material may be commercially reproduced, but copying for other purposes, with credit, is encouraged.